Donald Trump’s Belated Civics Lesson
President Trump has gradually discovered the meaning of the oath he swore on Jan. 20, and he doesn’t seem to like it. In the course of an interview on “The Larry O’Connor Show” last week, he said, “The saddest thing is that because I’m the president of the United States, I am not supposed to be involved with the Justice Department. I am not supposed to be involved with the FBI. I’m not supposed to be doing the kinds of things that I would love to be doing. And I’m very frustrated by it.”
Meet James Madison’s Constitution, Mr. President. It is nothing like a family business. It is designed to frustrate you.
The point of the Constitution is not to do the bidding of any one institution, let alone a single individual. It is to preserve liberty by thwarting tyranny, which Madison defined in Federalist 47 as “the accumulation of all powers, legislative, executive, and judiciary, in the same hands.”
These forms matter. In our system, public officials must not only do the right thing; they must do it in the right way. Good intentions that run roughshod over institutional limits are abuses of power.
This brings us to the Justice Department. It is part of the executive branch, but it exists only by act of Congress—to be precise, two acts. The Judiciary Act of 1789 created the office of attorney general. Nearly a century later, in 1870, Congress created the Justice Department, giving the attorney general additional responsibilities (including the supervision of U.S. attorneys) and a staff to help him fulfill his new duties.
The Judiciary Act provided that the attorney general should be a “meet [that is, fitting] person, learned in the law,” and it offered a precise definition of the attorney general’s duties: “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments.”
This language makes clear what every president should understand the day he enters office: The attorney general’s first duty is to the law, not to the president. The chief executive may require the attorney general to render an opinion, but he cannot tell the attorney general what the content of the opinion should be. Nor can the president tell the attorney general whom to investigate or prosecute. These are supposed to be legal, not political, judgments.
Mr. Trump does not seem to understand this. He has made public statements intended to pressure Attorney General Jeff Sessions to open politically driven investigations with an eye toward eventual prosecutions. Before he left for Asia, for example, he told reporters that the Justice Department “should be looking at the Democrats.” Demands from his core supporters add to the political pressure on what should be legal determinations. The president’s conduct is a reminder that government relies not only on constitutional forms, but also on constitutional norms.
Michael Mukasey, whom President Reagan nominated to the federal judiciary, served as attorney general under George W. Bush, where he was a staunch defender of the war on terror. Years later, he became a fierce critic of Hillary Clinton. But after Donald Trump led chants of “Lock her up!” during his presidential campaign, and threatened Mrs. Clinton with prosecution during a debate, Mr. Mukasey could not remain silent. “It would be like a banana republic,” he said. “Putting political opponents in jail for offenses committed in a political setting . . . is something we don’t do here.”
Mr. Mukasey’s comments highlight the importance of the norms that undergird America’s constitutional order. Throwing political opponents in jail undermines the rule of law and erases the line between law and politics. This is not what constitutional democrats do. This is what autocrats do—in Turkey, in Venezuela, and wherever leaders backed by mobs and majorities are emboldened to push for total power.
Elected officials across party lines must put the president on notice: Any further attempts to manipulate the attorney general, the Justice Department, the FBI or the special counsel in the performance of their duties under law will be rebuked and resisted.
Appeared in the November 8, 2017, print edition.